Parthasarathi, J.:— This is an appeal from the decision of Krishna Rao, J. in writ Petition No. 1223 of 1966, whereby a writ of Certiorari was issued quashing the Notification made by the Government of Andhra Pradesh under Section 17(4) of the Land Acquisition Act. Certain lands situated in the village of Nachupalli in Karimnagar District were sought to be acquired for providing House sites for Harijan families of the Village. By a Notification dated 11-4-1966, the Governor of Andhra Pradesh directed that in view of the urgency of the case the provisions of section 5-A of the Land Acquisition Act shall not apply to the acquisition of the arable binds land specified in the notification.
2. In the writ petition the notification was challenged mainly on the ground that there was a colourable exercise of the power under Section 17(4) and that there was no urgency justifying the use of the power. Krishna Rao J., held that no material was placed before the court by the Government to show under what circumstances the opinion about the urgency of the acquisition was formed. It was pointed out that the request for the acquisition was made as long ago as 1962 and that the Notification under section 17(4) was made nearly four years later. He said:
“As pointed out in the above rulings, the urgency must be such as would not brook a delay of 30 days for hearing the objections. In cases where there is delay on the part of the Government in issuing the relevant notification, it will not be open to the Government to invoke the urgency clause as a matter of routine unless it is a case of real urgency as contemplated under the Act”.
3. The learned Judge held that the exercise of the power under section 17(4) would be immune from review by courts only when the opinion is formed on the basis of the relevant factors but not otherwise. He thought that the proceedings of the District Social Welfare Officer and his communication to the Revenue Divisional Officer to take action under the emergency clause did not constitute relevant material on which the Government could form its opinion about the urgency of the acquisition. Page: 149In Writ Appeal No. 109 of 1969 the decision of Krishna Rao, J. which is the subject-matter of the present appeal, came to be considered by a Division Bench of which I was a member. The Division Bench expressed a view that was not wholly in accord with the pronouncement of Krishna Rao, J. The enunciation of the principle by the learned Judge was accepted in so far as he held that the statute makes it obligatory that either the Government or an officer of the Secretariat authorised under the rules, should form an opinion to invoke the power under section 17(4). The learned Judge's view was affirmed when he said that the opinion formed by the appropriate authority must be related to relevant data. To that extent, the Division Bench expressed a view in consonance with the formulation of the principle by Krishna Rao, J. The Division Bench, however, struck a note at variance with what the learned Judge had stated in these terms:—
“But when the learned Judge conceived of an examination by the High Court of “the grounds upon which the said opinion is based” it is obvious that the Court, would, thereby be entrenching on a domain where the subjective satisfaction of the Government reigns supreme. To canvass the ground on which the decision is based and to scan the reasons underlying the subjective satisfaction of the Government is a function of a court of appeal and not of the High Court in a proceeding for a writ of certiorari. We find some difficulty in reconciling the wider role of the court envisaged in the examination of the “grounds” with what he himself described in the next sentence as “the limited purpose of finding out whether any opinion was at all arrived at by the authority.” If the range of justiciability is limited to ascertain whether in fact there was an opinion of the authority concerned, it is clear that there can be no scrutiny of the grounds on which the opinion was formed. The mere existence of relevant grounds is sufficient and the property and soundness of the opinion cannot be the test of the judicial review.
4. Having regard to the dicta of the Division Bench quoted above, we should have ordinarily allowed this appeal against the decision of Krishna Rao J., because the learned Judge quashed the Notification by holding in effect and in substance that the opinion of the Government as to urgency of the acquisition was unsound and based on inadequate material.
5. It is submitted by Mr. Babul Reddy on behalf of the respondents that there are three other pronouncements of Division Benches of this Court relating to the same question, and that there is considerable divergence of opinion on the range, function or limitations of judicial review in respect of action taken under Section 17(4) of the Land Acquisition Act. In two of the decisions cited by the learned counsel, the decision in Writ Appeal No. 109 of 1969 was not noticed presumably because the decision was not brought to the notice of the learned Judges who heard the cases.
6. In writ appeal No. 236 of 1966, Obul Reddi, J., with whom Madhava Reddy, J., concurred expressed the principle in these terms:
“………this court has power, if it could be shown that the State Government never applied its mind to the matter regarding the urgency of that the action of the State Government is mala-fide, to examine the basis on which the opinion as to agency was formed.”
7. It was further observed:
“While it is true that the Government is the sole authority to determine the question of urgency, it must stand the test of judicial scrutiny when viewed in the context of the purpose for which the acquisition was made and the inordinate delay in taking possession which might defeat the very purpose of the urgency.”
8. Another reason assigned by the learned Judges was that if the matter was one of urgency there was no reason as to why for four years the Government should have kept quiet without even entertaining the remote idea of taking possession of the land acquired.” The learned Judges purported to review the exercise of the power in the light of the subsequent events and came to the conclusion that the Government had not at all applied its mind to the question of urgency.
9. In Writ Appeal No. 97 of 1967, another Division Bench consisting of Gopal Rao Ekbote, J., and Ramachandra Raju, J., held that the formation of opinion about the urgency of the acquisition is not totally free from judicial enquiry. According to them the court can correct or reverse the exercise of the power, besides others in cases where there is some material before the Government but the Court is of opinion that the material before the Government does not have any Page: 151bearing whatsoever on the question of urgency. The ratio of this decision appears to proceed on the hypothesis that the exercise of the power of the Government could be struck down not only in cases where it is established that there was no material at all on which the Government acted but also in cases where the Court might come to the conclusion that the data before the Government were insufficient or irrelevant. The facts in that case were that the Collector of the District addressed the Government to treat the matter as urgent although the Collector did not give his reasons for his opinion about the urgency. The Division launch thought that the Government “seems to have mechanically without applying their mind to this aspect of the case approved of the recommendation and issued the impugned Government Order.” The learned Judges took note of the fact that in the counter-affidavit filed by the Government there was no whisper any where about the reasons for dispensing with the inquiry under section 5-A. The comment made by the learned Judges about the counter-affidavit makes it explicit that their view is that the Government must affirmatively make out the case of urgency by giving the particulars of the reasons for their opinion. The dicta of the learned Judges do not limit the cope of the Judicial review to the proof of the existence of the relevant material. It is very much enlarged. On a consideration of the several observations made by the learned Judges, it is evident that the soundness or the propriety of the opinion as to urgency is held to he justiciable. The view taken by this Division Bench is that when the validity of a notification under section 17(4) is called in question, the Government must defend the validity of their action by particularising the reasons and the data that led to the exercise of the power. The insistence on such particularisation of the reasons and the data is to enable the scrutiny of the Court to judge whether the data were mechanically adopted by the Government or whether there was an independent assessment made by the Government of the need for the exercise of the power.
10. Yet another Division Bench made a pronouncement on the question considering inter alia the reasoning in Writ Appeal No. 109 of 1969. The Division Bench consisting of the learned Chief Justice and Sambasiva Rao J., in Writ Petition No. 3276 of 1969 and others batch, came to the conclusion that the principle enunciated in Writ Appeal No. 109 of 1969 is not inconsistent with the view taken by Krishna Rao J. While holding that a Court cannot normally enquire Page: 152whether there was sufficient ground or justification for the opinion formed by the appropriate Government under Sec. 17(4) the learned Judges were nevertheless of opinion that the action of the Government could be subjected to judicial review among other things if the court finds that the opinion of the Government was based on irrelevant or extraneous facts.
11. It is submitted by Mr. Babul Reddy that the scope of judicial review as defined and explained in Writ Appeal No. 109 of 1969 is not consistent with the formulation of the principle in the other decisions adverted to above. In Writ Appeal No. 109 of 1969, it was pointed out that if the range of justiciability is circumscribed and the purpose of a judicial enquiry is merely to ascertain whether, in fact there was an opinion of the authority concerned, it must necessarily follow that a scrutiny of the grounds on which the opinion is formed is beyond the pale of the limited function of the court. It was on a consideration of the effect of two decisions of the Supreme Court and on the principles emerging therefrom that a distinction was drawn in Writ Appeal No. 109 of 1969 between an essentially objective test which is implict in the formation of an opinion as to whether waste or arable land is dealt with in contrast to the purely subjective function of assessing the urgency of the acquisition.
12. The decision of Supreme Court in Raja Anand v. State of U.P AIR 1967 Supreme Court 1081 lays down the principle that where the jurisdiction of an administrative authority depends upon a preliminary finding of fact, the High Court is entitled in a proceeding for a writ of certiorari to determine, upon its independent decision whether or not the finding of the fact is correct. In that case, on behalf of the State of Uttar Pradesh, the submission was made “that the condition precedent for the application of S. 17(4) of the Act was the subjective opinion of the Sate Government”. In repelling this contention, the Supreme Court pointed out that ever though the power of the State Government has been formulated under section 17(4) of the Act in subjective terms, the condition imposed by Sec. 17(1) has to be fulfilled before the power could validly be invoked. It is in that context that the Supreme Court referred to the principle in R. v. Shoreditch Assessment Committee (1910) 2 KB 859 a and While and Collins v. Minister of Health (1939) 2 KB 838 in support of the view Page: 153that jurisdiction of the administrative authority depends upon the preliminary findings of the land being waste or arable and that in a proceeding of a writ of certiorari it is competent for the High Court to determine, upon its independent judgment, whether or not that factual position exists. In dealing with such a situation, Ramaswami, J., who spoke for the Court, observed:
“The expression of opinion of the State Government can be challenged as ultra vires in a Court of Law if it could be shown that the State Government never applied its mind to the matter or that the action of the State Government is mala fide.”
13. The dictum expressed above must be understood in the light of the facts of that case and the contention urged before the Supreme Court on behalf of the State of Uttar Pradesh. The observation made in that context has been pressed into service in some of the unreported cases without due appreciation of the context in which it was made. In that case the question involved was whether the land was arable or waste. It was a fact to determine which objective criteria were applicable. In regard to the subjective satisfaction as to urgency the observations cannot be said to be wholly applicable. The principle emerging from the decision of the Supreme Court in Raja Anand's Case has necessarily to be considered in the light of the subsequent pronouncement of the Supreme Court in Iswarlal v. State of Gujarat AIR 1968 Supreme Court 870 at 877. In the latter case, the question was whether the opinion was formed by a person competent to do so on behalf of the Government. Hidayatullah, J., (as he then was), posed the question in the terms:
“Whether any one at all formed an opinion and if he did whether had the necessary authority to do so.”
14. After adverting to the Ratio Decidendi in the two decisions of the Supreme Court, it was observed in Writ Appeal No. 109 of 1969 as follows:
“As regards the former, when the appropriate Government addresses itself to the question as to whether the land proposed to be acquired is waste or arable land, the opinion, though formed subjectively by the Government is nevertheless capable of a scrutiny or review from an objective angle. But, Page: 154when an opinion has to be formed about the urgency of the acquisition, the emphasis must be on the subjective nature of the opinion.”
15. In determining whether the land proposed to be acquired is arable or waste, it is apt to apply the principle that it is not for the Government to decide in a manner immune from judicial review, whether that state of the facts existed and if they exercise the jurisdiction without its existence what is done could aptly be corrected by the issue of a writ because the Government must be held to have acted without jurisdiction. The determination whether state of urgency exists crimes within the scope of the second of the categories mentioned by Lord Esher, M.R in Queen v. Commissioner for Special Purposes of the Income-Tax5. The legislature has entrusted the appropriate Government with the jurisdiction to decide whether a state of urgency exists and to give itself jurisdiction to dispense with enquiry under section 5-A in case it is of opinion that a state of urgency exists. In respect of the determination of the urgency, it is an erroneous application of the rule to say that an authority cannot give itself jurisdiction by wrongly deciding a certain urgency exists, when in fact the court on a consideration of the same material might take a different view about the existence or the degree of urgency. It was in the light of this antithesis that the Division Bench made the following observations:
“The opinion formed by the State Government as to the existence of urgency is not a matter that can fairly be tested from general objective standards; and the subjective satisfaction of the Government is not open to attack in these proceedings, except on well-defined and specific grounds like mala fides which vitiate or nullify an administrative action.”
16. It is evident that the scope of judicial review as envisaged in Writ Appeal 109 of 1969 is limited to specific grounds like mala fides which vitiate or nullify an administrative action. On the other hand, the view taken by Krishna Rao, J., in the judgment under appeal, throws the door wide open for a judicial probe into the grounds upon which the opinion as to urgency is based. Krishna Rao, J., had in fact come to the conclusion that the report of the District Social Welfare Officer did not constitute any material on which the Government Page: 155could form its opinion. With respect, it must be said that the learned Judge had held that the opinion of the Government is not sound when judged by the criteria adopted by the court and the material before the Government did not furnish adequate basis for the exercise of the power. If the court were to substitute its own norms of standards of urgency and were to hold that the Government's opinion as to urgency was not based on sound reasons, or criteria the result is that the subjective satisfaction of the Government ceases to be the basis for the exercise of the power under section 17(4).
17. There is thus, a clear divergency of opinion disclosed by the aforementioned decisions and the learned counsel has submitted that the principles on which the several decisions have been rendered are not easily reconcilable. We agree with this submission.
18. One of the main points of consideration is whether the action of the Government based on its subjective satisfaction about the nature of the land under section 17(1) can be placed on the same footing as the subjective satisfaction of the Government in regard to its opinion as to the urgency. The fundamental distinction between the two aspects has been explained at some length in Writ Appeal No. 109 of 1969. It may also be pointed out that a close examination of the two decisions of the Supreme Court adverted to above, emphasis the distinction.
19. It is well known that an administrative authority or tribunal may be called upon to deal with two different classes of facts; facts which the tribunal has jurisdiction to determine and facts which must exist objectively before the tribunal can assume jurisdiction. Mistakes as to the facts of the latter class will deprive the tribunal of its jurisdiction and its decision can be quashed as ultra vires. The determination whether the land proposed to be acquired is waste or arable in quality comes within the later category. In regard to the former category, i.e where a tribunal or authority is given jurisdiction to determine, such tribunals or authorities are free to err uncorrected. The decision of the Supreme Court in Raja Anand's Case elucidates that the fact on which the tribunal's jurisdiction depends is fully reviewable by the court. It is often said that the distinction between a jurisdictional fact and facts of the other category rests upon an indefinite distinction. Page: 156In a border line case, it may not be possible to state with certainty whether any given question is jurisdictional or not; But in considering the terms of section 17(1) this difficulty does not arise. It is possible for a court acting under Article 226 to consider from a objective angle whether a given piece of land is arable or waste whereas a like test is impossible in regard to the degree or nature of urgency.
20. A well-known writer observed that courts some times hold that questions are jurisdictional and sometimes that they are not, justifying themselves by reference to the will of Parliament but guiding themselves by there inclination or disinclination to intervene. The construction of section 17(1) indicated earlier steers clear of this objection and at the same time it preserves a flexible control by court of administrative action enabling the court to give a sharp check to what it may think a usurpation of power. In formulating the principle in Writ Appeal No. 109 of 1969 an attempt has been made to retain ??? flexible and necessary control over administrative action while maintaining the well-known distinction between jurisdictional and other facts. It is useful to remember what Justice Brandies said about the idea of jurisdiction being useful not as an emphatic absolute but simply as a means of expressing a flexible rule whereby the executive is allowed the power to make mistakes but not too much.
21. It must be remembered that the acquisition of land under the Land Acquisition Act is an administrative function. It is unnecessary to cite authority for this position; but, it is sufficient to refer in this context to the well-known decision in Province of Bombay v. Kusaldas S. Advani 1950 S.C.R 622. An administrative tribunal may find facts correctly, may apply the law correctly but it may still act unlawfully by using its discretionary power to act as it thinks fit when a choice dependent on policy has to be made. In exercising the discretionary power to excretes the emergency power, an administrative authority may sometimes act unreasonably but in such cases, the jurisdiction of the court must be exercised when an attack is made on that ground, it would not be correct to quash a notification on the mere ground that the courts view as to the urgency is different from that of the Government. The abuse of discretionary power is one of the important fields for judicial control. The question has often been posed. Is Page: 157there a legal requirement that administrative powers shall be exercised reasonably? There is abundant authority for the view that courts can correct by means of prerogative writs an unreasonable exercise of administrative power. This is the closest approach to surveillance of official or executive action of the courts sitting in judgment on the merits of administrative action. It is apt to bear in mind what justice Frank Further stated that a formula for a judicial review of Administrative action may afford grounds for certitude but cannot assure certainty of application. If the exercise of power under Section 17(4) is subject to judicial review within the limits envisaged in Writ Appeal No. 109 of 1969, a formula can be devised in relation to the problem which could be describe in the language of Justice Frank Further, as undefined defining terms.
22. A reference to the decision of the Supreme Court in Provence of Bombay v. Kusaldas S. Advani 1950 S.C.R 622 will suffice to define in clear outline the principle that underlies the view taken in Writ Appeal No. 109 of 1969 Kania; C.J, said:
“…merely because an executive authority has to determine certain objective facts affecting the rights of the subjects as a preliminary step to the discharge of an executive function it does not follow that it must determine those facts judicially. On the contrary when the executive authority has to form an opinion about an objective matter as a preliminary step to the exercise of a certain power conferred in it, the determination of the objective fact and the exercise of the power based thereon are alike matters of an administrative character…..”
23. The principle so stated governs the sphere of judicial review in regard to action taken by the Government under Section 17(4). The Government except when an inquiry into objections is done under section 5-A, is not exercising a power of a judicial or quasi-judicial nature; however, where the subjective opinion of the Government in regard to the nature of the land is concerned, a distinction can be and was made in Raja Anand's Case. This is based on the doctrine that the jurisdictional fact is open to review by courts. But where the determination of a preliminary nature does not relate to facts capable of being objectively tested, the position is different. The approach to the question in Writ Appeals Nos. 236 of 1966 and 95 of 1969 does not manifest a recognition of the distinction.
24. From the foregoing review it is clear that in Writ Appeals No. 236 of 1966 and 97 of 1967 the learned Judges have by applying their own criteria or by taking into account events subsequent to the notification quashed the Government Orders by finding that there is no urgency for invoking the power under Sec. 17(4). This view is in conflict with the ratio decidendi in Writ Appeal No. 109 of 1969 which holds that the exercise of power under that provision to be undefinable except in well defined grounds like malafides which vitiate or nullify an administrative action. We are accordingly of opinion that it is necessary to have the matter considered by a Full Bench. The question for which an answer is to be provided is whether a notification made under Section 17(4) dispensing with enquiry under section 5-A on the ground of urgency is subject to review under Article 226 on grounds other than mala fides or the arbitrary nature of the notification or that it was not made by the appropriate or competent authority.
(The orders of the Hon'ble the Chief Justice may be obtained for early posting):
25. This appeal, pursuant to the above order of reference to a Full Bench coming on for hearing on Monday the 8th day of February, 1971 before the Hon'ble Mr. N. Kumarayya, Chief Justice. The Hon'ble Mr. Justice Gopal Rao Ekbote and the Hon'ble Mr. Justice Sambasiva Rao, upon perusing the grounds of appeal, the order of the High Court dated 3-1-1969 and made in W.P No. 1223 of 1966 and the order of reference to a Full Bench dated 26-10-1970 and made herein and upon hearing the arguments of C. Haridatha Reddy and K.L Ramana Rao Advocates for the appellant, and of Mr. P. Babul Reddy for Mr. A. Anand Reddy advocate for the respondents 1 to 5 and of the 3rd Government Pleader on behalf of the Respondents 6 and 7 and having stood over for consideration till Thursday the 25th day of February, 1971, the court made the following:
ORDER ON REFERENCE
(Opinion of the Full Bench delivered by Gopal Rao Ekbote, J.)
26. The following question has been referred to the Full Bench by our learned brothers Narasimham and Parthasarathi, JJ. by there order of reference dated 26th October, 1970.
“Whether a notification made under Section 17(4) of the Land Acquisition Act dispensing with enquiry under Section 5-A on the ground of urgency is subject to review under Article 226 on grounds other than malafides or the arbitrary nature of the notification or that it was not made by the appropriate or competent authority?”
27. The facts which are said to give rise to the said question may be briefly stated.
28. Respondents 1 to 6 filed W.P No. 1223 of 1966 for the issue of a writ of certiorari to quash the Memo No. 317-R-1/66-3, Education, dated 11th April, 1966. It was alleged inter alia that petitioners 1 and 2 are the pattadars of S. No. 2.A admeasuring 0-22 guntas and 2.B admeasuing Ac. 1-20 guntas respectively. Petitioners 1 to 6 are alliances from petitioners 1 and 2 and claim the mselves to be occupants as well as tenants.
29. The Government, they allege, intended to acquire S. No. 8 admeasuring Ac. 4-20 guntas, which is contiguous to Harijan locality and which satisfies the requirements of the needy Harijans. Sri P. Krishna Rao, Patwari, Pattadar of S. No. 8 by dint of his influence swerved the acquisition proceedings from S. No. 8 to S. No. 5. S. No. 5, because of effective steps taken by its pattadars could not be acquired. Consequently S. Nos. 2.A and 2.B are being acquired.
30. The Government issued notifications under sections 4 and 6 of the Land Acquisition Act, hereinafter called “the Act” and dispensed with the enquiry under section 5-A in view of emergency on 17-6-1965. Before any notice under Section 9 was issued, the petitioners objected to the notification dispensing with the enquiry under Section 5-A and the acquisition of the land on two grounds. Firstly it was contended that the suspension under Section 17(4), of the enquiry under section 5-A is a colourable exercise of authority; and secondly that since the payment of compensation is not from the public funds, the acquisition is vitiated.
31. In their counter the State Government and the Land Acquisition Officer, who were respondents 1 and 2 in the writ petition, stated that the District Social Welfare Officer, Karimnagar in his letter dated 2-1-1965 proposed acquisition of 2.14 acres out of S. No. 2, i.e 22 guntas from S. No. 2.A, Ac. 1-20 guntas from S. No. 2.B and 0-12 Page: 160guntas from S. No. 2.C for providing house sites for 40 Harijan families. The standing Committee of the Zilla Parishad, Karimnagar at its meeting held on 15-3-1963 selected S. No. 2 for construction of such houses.
32. Four Survey Nos. 711, 45, 9 and 8 were proposed for acquisition. The site, however, was to be approved by the District Health Officer. He issued a certificate of suitability only in respect of S. No. 2. It is because of this that the Standing Committee of the Zilla Parishad approved acquisition of S. No. 2.
33. The Collector in his letter dated 17-5-1965 proposed to dispense with the enquiry under section 5-A read with Section 17(4) of the Act in view of the emergency. The Government after considering the relevant facts approved in their Memo dated 11-4-1966 G.O dated 21-7-1966 published in the Gazettee dated 5-5-1966 and 11-8-1966 respectively, the acquisition of the land in question. Enquiry under section 5-A also was dispensed with. It is further averred that the entire amount of compensation was being paid by the Government.
34. Our learned brother Krishna Rao, J., by his judgment dated 3-1-1969 considered the only point urged before him by the petitioners. The contention was that the exercise of power under section 17(4) of the Act was not proper and was only a colourable exercise of the said power as it was not a case of urgency at all. The other point raised in the petition was not pressed before him. The learned single Judge after observing that no material was placed before him to show under what circumstances the Government formed the opinion that the acquisition was a case of urgency, that the Panchayat Samithi in its Resolution did not indicate any urgency whatsoever, and that the proceedings of the District Social Welfare Officer in the opinion of the learned Judge did not constitute any material on which the Government could form its opinion. The learned Judge therefore reached the conclusion that the instant case was a case of ordinary acquisition and not an emergent case and it was not open to the Government to invoke the urgency clause, and consequently the power under Section 17(4) has been improperly exercised. The impugned order therefore was quashed.
35. The State Government and the Land Acquisition Officer, respondents 1 and 2 in the Writ Petition, did not prefer any appeal. It is the other respondents 3 to 8 who preferred the appeal. The bench thought that there is a clear divergence of opinion between the two Bench decisions of this Court in Writ Appeal No. 236 of 1966 (Obul Reddi and Madhava Reddy, JJ.) and W.A No. 97 of 1967 (Gopalrao Ekbote and Ramachandra Raju, JJ.) on the one hand and Writ Appeal No. 109 of 1969 (Jaganmohan Reddy, C.J and Parthasarathi, J.) on the other inasmuch as in the opinion of the Bench, the first two decisions took the view that “the soundness or the propriety of the opinion as to urgency is justiciable,” whereas in Writ Appeal No. 109 of 1969 it was held that although normally the opinion of the Government cannot be reviewed by the Court, it could be subjected to judicial review “among other things if the Court finds that the opinion of the Government was based on irrelevant or extraneous facts.” It is because of the said difference of the opinion between the said judgments that the Bench referred the question extracted at the outset of the judgment for the consideration of the Full Bench.
36. The question implies that a notification made under Section 17(4) of the Act dispensing with the enquiry under section 5-A because of urgency can be successfully attacked on the three grounds referred to in the question, viz: (1) mala fides: (2) arbitrary nature; and (3) not made by a competent authority. It is therefore unnecessary to consider these grounds on the basis of which such a notification can validly be challenged. There was no controversy at the bar about this aspect of the question. The question therefore is: Are there other grounds on the basis of which such a notification can be challenged in a proceeding under Article 226 of the Constitution. If so, what are those grounds.
37. In order to find out an answer to the said question, it is necessary first to read section 17(4):
“In the case of any land to which, in the opinion of the appropriate Government, the provisions of sub-section (1) or sub-section (2) are applicable, the appropriate Government may direct that the provisions of Section 5-A shall not apply and, if it does so direct, a declaration may be made under section 6 in respect of the land at any time after the publication of the notification under section 4, sub-section (1)”
38. Even a casual reading of this provision would indicate that if the Government is of the opinion that in the case of any land to which sub-section (1) or sub-section (2) is applicable the Government may direct that section 5-A shall not apply. It is evident that in order to form the opinion as to whether sub-section (1) applies to a given case, it has to consider firstly whether the land in question is a waste or arable land and secondly whether the case is of urgent character. It is only after the existence of these two facts that the Government can form the opinion that sub-section (1) applies to the case and it is only on the formation of such an opinion that the Government may direct under sub-section (4) that section 5-A shall not apply to the case. What is plain is that although the phrase “in the opinion of the appropriate Government” is a subjective formula such an opinion has to be formed about the existence of the above said two facts. That state of affairs must, exist for the formation of the opinion.
39. It is indisputable that the purpose of sub-section (1) is entirely different than the purpose of sub-section (4). While sub-section (1) relates to taking of possession of any waste or arable land in a case of urgency even before any award is made, sub-section (4) concerns itself with the direction that section 5-A shall not apply to a case where the land in question is a waste or arable land and it is a case of urgency.
40. It must be noted that the subjective formula appears only in sub-section (4) and not in sub-section (1). That is the main reason why it in now thoroughly well settled that the decision of the Government as to whether a land is a waste or arable land and whether there is an urgency for the purposes of sub-section (1) is a jurisdictional fact which must exist before the appropriate Government exercises the power under sub-section (1). In other words, these primary facts must be shown to exist before the appropriate Government can ask the Collector to take possession of the land even before the award is made. And it is now established that on collateral facts such as above the appropriate Government cannot give to itself, by a wrong decition on any one of the two factors, competence to direct taking of possession. It is a general rule that no Court or nuthority of limited jurisdiction can give to itself jurisdiction by a wrong decision on a point collateral to the merits of the case upon which the limit to its jurisdiction depends. Any such decision of Government under Sub-section (1) is open to judicial review and it is open to this court to review Page: 163even the questions of collateral facts in order to find out whether the appropriate Government has assumed the competence correctly. It is well known that in such cases this court is not only entitled to review preliminary facts constituting jurisdictional facts as were before the appropriate Government but can even admit additional relevant evidence in order to decide the jurisdictional facts.
41. Such a case comes within the first part of the observation made by Lord Esber in a well-known case The Queen v. Commissioner for Special Purpose of the Income Tax (1888) 21, Q.B.D 313. We do not think that it would be correct to hold that the question whether the land in question is a waste or arable land alone is a jurisdictional fact which comes under the first part of the said observation of Lord Esher and not the question whether the case is of an emergent nature. That is also a condition precedent for the exercise of the power under sub-section (1). That question also therefore comes under the first part of the observation and can in no case come under its second part. While considering a case purely under sub-section (1), it should not be confused with sub-section (4) or vice versa.
42. This position has been accepted by the Supreme Court of India in several cases to which reference, in our opinion, is unnecessary because in the present case there is no dispute regarding the exercise of power under sub-section (1). The position of law as stated above in regard to sub-section (1) that any decision of an appropriate Government in that behalf can be objectively tested as it constitutes a collateral fact was not and could not be doubted.
43. In regard to sub-section (4) then, since the subjective formula is employed in the formation of the opinion by an appropriate Government regarding the existence of the said two factors referred to in sub-section (1), it is obvious that such a subjective opinion cannot be tested by any objective considerations. It is not a question relating to collateral facts. Any attack on such an opinion subjectively formed by the Government in regard to either of the two factors must necessarily lie within a narrow compass.
44. It must, be remembered that sub-section (4) when it refers to sub-section (1) it refers to it only for a limited purpose. It is a piece Page: 164of legislation by reference. It is only attracted to find out whether sub-section (1) applies to the case before section 5-A enquiry is dispensed with. And it is already seen that for that purpose two factors enumerated in sub-section (1) if exist then alone sub-section (1) can be said to apply. For any purpose other than that the two provisions need not be mixed up and confused as they are meant to meet altogether two different situations. In regard to the existence of the two factors for the purpose of sub-section (4) the appropriate Government has to specifically form an opinion.
45. What then are the grounds on which such an attack on a subjectively determined question is permissible under Article 226 of the Constitution?
46. We have already noticed that sub-section (4) leaves the formation of opinion to the appropriate Government. It is the subjective opinion that is involved. It is plainly intended however that the enquiry under section 5-A has to be dispensed with only when some particular state of affairs exist in the opinion of the appropriate Government. It is equally plain that the judge of the facts that there are circumstances and material to form the opinion that the case is urgent and it relates to arable or waste land is left to subjective decision of the Government concerned and not to the court of law. The provision of sub-section (4) is so expressed that what is required is not an objective state of fact, but a mere state of mind on the part of the appropriate Government. The plenary power of the Parliament when it wishes to use it, is well illustrated by provisions of this kind, which tie in a way the hands of the Courts.
47. This form of power, it is true, is regarded as an abnormally wide power but is certainly not a case of restriction of remedies. Whatever that may be it is obvious that the formation of opinion is subjective and its correctness or otherwise cannot he determined by an objective test. It is not normally permissible to examine the authority to which the subjective power is entrusted to find out as to by what mental process it has arrived at the conclusion. It has repeatedly been held that if the Government opined that the matter was urgent, the decision cannot be reviewed as in appeal. Nor can the Court interfere on the ground that there were no sufficient grounds to form the opinion. In other words, the court cannot review the opinion on its merits. The propriety and soundness of the opinion of the Government therefore is outside the purview of the judicial review.
48. There is no scope for probing the mental processes of the Government concerned. A reviewing court cannot probe the mental processes of Minister any more than it can those of a trial court. The proceeding before the Government has a quality resembling that of a judicial tribunal. As such examination of a judge would be destructive of judicial responsibility. Just as a judge cannot be subjected to a judicial scrutiny so the integrity of the administrative process in this behalf must be equally respected. In this connection it must be borne in mind that although the administrative process has had and is having a different development and it pursues some what different ways from those of courts, they are to be deemed collaborative instrumentalities of justice and the appropriate independence of each should be respected by the other. The court's function is limited. According to an early English Judge, “the devil himself knoweth not the mind of men ind a modern reviewing Court is not much better equipped to lay bare unexposed mental processes.” It is in this context that it is said that the subjective satisfaction is not justiciable.
49. This does not, however, mean that this court in no case has jurisdiction to consider whether the order passed on such subjective formula is valid or not. No doubt the functions that can be performed by judicial review in such cases are fairly limited. Broadly speaking the role of the Courts in this field is to serve as a check against excess of power and abuse of the exercise of power in derogation of private right. The judicial function is thus one of control. The province of the Court is to confine the administrator within the bounds of legality, not to determine for itself the wisdom of challenged administrative action. At the same time, it must be remembered that the limitation imposed on the scope of enquiry of the reviewing court must not go so far as to prevent full judicial scrutiny of the question of legality. If that question cannot be properly explored by this Court then the right to judicial review would become an empty form. It would reduce the judicial processes in such cases to a mere faint. To hold otherwise would mean that an administrative order is final and not reviewable by any Court even though entered arbitrarily, or is made in excess or abuse of power or made with no regard to the correct interpretation or application of the constitutional or statutory term or made in defiance of law: Such a sweeping contention for administrative finality is out of harmony with the general legislative pattern of administrative and judicial relationships. If the judiciary has no Page: 166power in such matters, the only practical restraint would be the self-restraint of the executive branch. Such a result is foreign to our concept of judicial review of an administrative action.
50. It cannot be in doubt that whenever a power is conferred on any one under the Constitution or a stature, it has always limitations and never an absolute power is conferred. The Government under the rule of law demands proper legal limits on the exercise of powers. Two principles of statutory interpretation have to be carefully balanced in such cases which often come into conflict. First, it has to be presumed that powers even though widely defined, have some ascertainable limits, and that the Constitutent Assembly or Parliament is unlikely to intend the executive to be the judge of the extent of its own powers. Therefore, if it can fairly be implied that the powers were given to be exercised if certain circumstances exist and for some particular purpose; the exercise of power in the absence of particular circumstances or for any other purpose will be illegal. The courts shall never abrogate their duty to ensure that those entrusted with the power shall observe the conditions which Parliament imposed on them. Secondly, however, the Court must not usurp the discretion given to some other body. It is thus plain that in spite of the language which denotes subjective opinion or satisfaction, it is perfectly clear that the administrative decision is not final in the sense that the Courts cannot do any thing about it.
51. The Constituent Assembly or the Parliament must be presumed to have intended that power vested in any authority albeit in wide terms shall only be exercised legally and it would require stronger words than the words used in subjective formula to displace the presumption that illegality should be controlled in the usual way. This construction is fairly established, even though it haves such subjective clause with very little positive meaning. In this sense judicial review of such action is possible in spite of any prohibition or subjective formula. The Courts would be refused to be daunted by this kind of formula if there are valid and permissible grounds to interfere. It is, however, plain that the Court will not substitute its own opinion or satisfaction with that of the Government.
52. It is true that at one time in England it was a common practice to use formula purporting directly to exclude judicial review if certain types of orders and decisions but some of these formulas were given Page: 167a restrictive judicial interpretation, while others give rise to public criticism. The practice to employ the subjective formula was therefore modified, and it became more usual simply to empower administrative authorities to follow a given course of action when they were “satisfied” or they could form an “opinion” when a prescribed state of affairs existed. The courts tended to interpret such grants of power literally, and in general refused to go behind the assertion of the competent authority that it was in fact honestly satisfied or had formed the opinion as to the existence of the circumstances which led to the exercise of its power.
53. S.A de Smith in his Book “Judicial Review of Administrative action”, Second Edition at page 26 states:—
“In the ??? judicial self-restraint appeared to have won a decisive victory over judicial activism in a field where the contest might well have been an even one. By 1967 the balance had shifted, and the courts seemed less ready to accept the conclusiveness of even a Minister's opinion on a question of law or fact. Moreover, it was less common for statutes to grant powers in subjective terms or by reference to very vague standards. Nevertheless, the powers granted to Ministers were still generous enough for an established excess of power to be a rarity.”
54. At page 224, the learned author pointed out the judicial trend which prevailed during and immediately after the War and also brought out the change which has prominently occurred in judicial approach to cases where subjective formula is used:
“Wartime and immediate post war decisions ought not to be treated with an excels of reverence. The emergency legislation of the Second World War gave the Executive vast powers over persons and property. The wording of the grants of power was sufficient, on a literal interpretation to support the validity of almost any act purporting to be done in pursuance of them. Not only did the courts give a strictly literal interpretation to subjectively worded formulae; in their anxiety not to impede the war effort they declined to give a literal interpretation to formula which prima facie enabled them to review the reasonableness of the grounds for exercising a discretionary power authorising summary deprivation of personal liberty. Such a measure of judicial self-restraint is unlikely to be repeated except in conditions of grave emergency. But a literal construction of the subjective type of Page: 168formula was to reappear in a number of immediate post-war cases having only a remote connection with national emergency.”
55. In regard to the present trend, the learned author brought out the same at page 274 in the following words:
“But the post-war climate of emergency has dispersed; judicial apprehensiveness about the consequences of appearing to encroach on the private domain of politicians has diminished. Of late, moreover, Parliament has been somewhat less generous in conferring upon public authorities powers couched in subjective terms exercisable when they are ‘satisfied’, or when “it appears to them,” or when in their opinion, a certain state of affairs exists; or powers related to loosely defined purposes; or powers enabling public authorities to take ‘such action as they think fit in relation to a subject-matter. Even where powers are conferred in such terms today, the courts will not readily defer to the conclusiveness of an executive authority's opinion as to the existence of a matter of law or fact upon which the validity of the exercise of the power is predicated. Nor will they so regularly confine themselves to the enunciation of perfunctory dicta about the duty to act in good faith when they are called upon to scrutinise the way in which the discretion itself has been exercised.”
56. Since we have quoted from the latest edition of the Book of the learned author S.A de smith where the learned author referred to cases showing the tendency of the Courts during and immediately after the Second World War and also referred to cases indicating that pendulums have now swung and emphasis shifted and to the fact that the Courts now a days would not be deterred by a subjectively worded formula from making enquiry into the legality of the exercise of the power asserting its broader supervisory jurisdiction, over subjective formulae notwithstanding, we feel it unnecessary to burden this judgment by considering various English cases relating to this change in the judicial outlook in England.
57. Turning then to the Indian decisions, we find that even in India till recently the Courts were often content to give a literal interpretation to words conferring powers in subjective terms on authorities. There is however of late a beneficial shift in this judicial attitude and now even in the face of subjective formula or formulae that appear to have been devised for the express purpose of ousting the Court's Page: 169supervisory jurisdiction, they have clung tenaciously to their powers of review. There is a potentially significant shift in emphasis which has recently occurred and the Courts are no longer so ready to defer to a Minister's or other authority's assertion that he or it is satisfied or is of the opinion about the existence of certain state of affairs.
58. Although in India there appears to be no perceptible change in the Legislative altitude in granting powers in subjective terms as one sees in England, nevertheless there is as stated above a perceptible shift in the emphasis of judicial approach to such a question. The latest trend is well reflected, if we may say so with respect, in decision of the Supreme Court in Barium Chemicals Ltd. v. Company Law Board AIR 1967 S.C 295. In that case all the important previous decisions have been considered and it is clearly brought out as to in what circumstances and to what extent judicial review is permissible even in a case where subjective formula such as “in the opinion of” or “is satisfied” is employed. Their Lordships observed at page 323:
“Though an order passed in exercise of power under a statute cannot be challenged on the ground of propriety or sufficiency, it is liable to be quashed on the ground of mala fides, dishonesty or corrupt purpose. Even if it is passed in good faith and with the best of intention to further the purpose of the legislation which confers the powers, since the Authority has to act in accordance with and within the limits of that legislation its order can also be challenged if it is beyond those limits or is passed on grounds extraneous to the legislation or if there are no grounds at all for passing it or if the grounds are such that no one can reasonably arrive at the opinion or satisfaction requisite under the legislation. In any one of these situations it can well be said that the authority did not honestly form its opinion or that in forming it, it did not apply its mind to the relevant facts.”
59. This view has been approved in Rohtas Industries Ltd. v. S.D Agarwal (1969) 1 SCC 325 , AIR 1969 S.C 707.
60. What must follow from the above said discussion is that any extreme contention that as section 17(4) leaves the matter to the opinion of the Government the question whether circumstances or material exist on the basis of which the Government has formed the opinion that there exists emergency in regard to a waste or arable land Page: 170is not at all justiciable cannot be accepted as wholly correct. Even where terms such as “is satisfied” or “is of the opinion” formula is employed, judicial review is permissible albeit in a narrow and limited field.
61. What then is the limited field in which this Court can examine the legality of such order in spite of the subjective formula?
62. The executive action based on subjective opinion or satisfaction, in our opinion, can judicially be reviewed firstly to find out the existence of facts or circumstances on the basis of which the Government is alleged to have formed the opinion. It is true that the Courts will not inquire into the correctness or otherwise of the facts found except in a case where it is alleged that the facts which have been found existing were not supported by any evidence at all or that the finding in regard to circumstances or material is so perverse that no reasonable man would say that the facts and circumstances exist. The courts will not readily defer to the conclusiveness of the executive authority's opinion as to the existence of a matter of law or fact upon which the validity of the exercise of the power is predicated.
63. In Mardana Mosque Trustees v. Mahmud 1967 I Appeal cases 13 at p. 23 it was held that where there was no ground on which a Minister could be ‘satisfied’ at the time of miking the order, he had no jurisdiction to make the order, he would be deemed to have failed to consider the right question.
64. The doctrine of reasonableness thus may be invoked. Where there are no reasonable grounds for the formation of the Governments opinion, judicial review in such a case is permissible. See Director of Public Prosecutions v. Head 1959 Appeal cases 83 (Lord Denning)
65. When we say that where circumstances of material or state of affairs does not at all exist to form an opinion and the action based on such opinion can be quashed by the Courts, we mean that in effect there is no evidence whatsoever to form or support the opinion. Although at one time in England except in cases of jurisdictional fact the executive action was not permitted to be attacked on the ground of no evidence but change has already come in the wind. The Courts there are now ready to assert control over findings of facts based on no Page: 171evidence just as they have done over mistakes of law apparent on the face of the record. The distinction between insufficiency or inadequacy of evidence and no evidence must of course be borne in mind. A finding based on no evidence as opposed to a finding which is merely against the weight of the evidence is an abuse of the powers which Courts naturally are loath to tolerate. Whether or not there is evidence to support a particular decision has always been considered as a question of law. See Reg. v. Governor of Brixton Prison Armah, Ex Parte (1966) 3 WLR 828 at 841.
66. It is in such a case that it is said that the Government would be deemed to have not applied its mind or it did not honestly form its opinion. The same conclusion is drawn when opinion is based on irrelevant matter. See Rasbihari v. State of Orissa AIR 1966 S.C 1081.
67. In Rohtas Industries Ltd. v. S.D Agarwal (1969) 1 SCC 325 , AIR 1969 S.C 707 it was held that the existence of circumstances is a condition precedent to form an opinion by the Government. The same view was earlier expressed in Barium Chemicals Ltd. v. Company Law Board AIR 1967 S.C 295.
68. Secondly the Court can inquire whether the facts and circumstances so found to exist have a reasonable nexus with the purpose for which the power is to be exercised. In other words, if an inference from facts does not logically accord with and flow from them, the courts can interfere treating them as an error of law. See Bean v. Doncaster Amalgamated Collieries 1944 (2) All Eng. R. 279 at 281. Thus this Court can see whether on the basis of the facts and circumstances found, any reasonable man can say that an opinion as is formed can be formed by a reasonable man. That would be a question of law to be determined by the Court. See Farmer v. Cottons Trustees 1915 AC 922. Their Lordships observed.
“……In my humble judgment where all the material facts are fully found and the only question is whether the facts are such as to bring the case within the provisions properly construed of some statutory enactment, the question is one of law only.”
69. See also Muthu Gounder v. Government of Madras10.
70. Thirdly, this court can interfere if the constitutional or statutory term essential for the exercise of the power has either been Page: 172misapplied or misinterpreted. The courts have always equaled jurisdictional review with review for error of law and have shown their readiness to quash an order if the meaning of the constitutional or statutory term has been misconstrued or misapplied. See (Earl of v. Minister of Housing and Local Government 1962 (2) QB 147, Iveagh (Earl of) v. Ministry of Housing and Local Government 1964 (1) QB 395, R. Fulham etc. v. Rent Tribunal, Regina v. Lewes Justices 1960 I WLR 700 and Ashbridge Investments Ltd. v. Minister of Housing and Local Government (1) 1965 WLR 1320 at 1326.
71. For example, if the term “waste land” or “arable land” is misconstrued or misapplied the court can interfere. It can hardly be doubted the it a finding involving the application of a statutory term such as the said two terms referred to above to the undisputed or proved facts of the case is one which is more legal than factual in nature and hence one which can be examined fully by the reviewing court. This view was well expressed by Lord Parker in Farmer v. Cotton's Trustee 1915 Appeal cases 922 at 932 to which a reference has already been made. In exercising adjudicatory authority, the administrator gives that finding which is most important. For it is by its application of the statutory language to particular fact patterns that the administrator concerned gives specific form and content to the enabling legislation. Where an authority misapplies the statute upon which its power rests it may well be acting beyond its authority. Proper administration of any statutory scheme presupposes proper application of the terms and concepts employed in the relevant legislation. Misapplication of a key statutory term may well enable the administrator to act in excess of his jurisdiction. Indeed it is difficult not to conclude that the statutory jurisdiction of an administrative agency is always dependant upon the proper application of the terms and concepts contained in the enabling legislation. A statutory term can have meaning only in its application to the particular facts of a particular case, Meaning derives vitality from application. Meaning is easily thwarted or distorted by misapplication. To limit review of such application by the authority concerned, is, in effect, to limit judicial review on really the jurisdictional question.
72. Fourthly it is permissible to interfere in a case where the power is exercised for improper purpose. If a power granted for one purpose is exercised for a different purpose, then it will be deemed that the power has not been validly exercised. If the power in this case is found to have not been exercised for dispensing with the enquiry in a case of real urgency but has been used only to avoid embarrassment or inconvenience which may be caused in an enquiry then the power will be deemed to have been exercised improperly. See ??? Asari v. State of Madras AIR 1954 Mad. 481.
73. Fifthly grounds which are relevant for the purpose for which the power can be exercised have not been considered or grounds which are not relevant and yet are considered and order is based on such grounds, then the order can be attacked as invalid and illegal. In this connection reference may be made to Ram Manohar v. State of Bihar AIR 1966 S.C 740 Dwarka Das v. Sate of J. & K. AIR 1957 S.C 164 at 168 Motilal v. State of Bihar AIR 1968 S.C 1509. On the same principle the administrative action will be invalidated if it can be established that the authority was satisfied on the wrong question: See Maradana Mosque Trustees v. Mahmud 1967 I Appeal cases 13.
74. In this connection it should be borne in mind that it is in cases where opinion is formed on no material or is formed on irrelevant material or the power is used for extra noons purposes that it is stated that the power is exercised arbitrarily, and we feel that the term “arbitrary” is used in this sense in the question and that is why we said that in regard to these grounds which fall under the head arbitrary it was not disputed. And it is plain that such an exercise of power is invalid. See Pariathambi Mudahar v. Special Tahsildar AIR 1965 Mad. 328.
75. Let us then consider the cases cited at the bar and referred to in the order of reference.
76. In Writ Appeal No. 109 of 1969 (Jaganmohan Reddy, C.J and Partbasaradhi, J.) given on 18th July, 1969, the Bench was concerned with one of the questions as to whether the decision of the State Government under section 17(4) read with sub-section (1) vitiated by arbitrary or unreasonable exercise of the power. The Bench Page: 174held that “the mere existence of relevant grounds is sufficient and the propriety and soundness of the opinion cannot be the test of the judicial review.” There can be little difficulty in agreeing with this proposition. It was also held that “it can therefore be laid down that the decision of the Government regarding the existence of the urgency is not subject to judicial review except in cases where the process is vitiated by mala fides, or it is shown that, in fact the decision taken was not that of the appropriate authority.”
77. If the said observation means that apart from the two grounds the subjective opinion formed by the Government cannot be attacked on other permissible grounds, then we must say, with respect, that, we cannot agree with this proposition. But we feel that the learned Judges did not want to limit the judicial review only to these two grounds, because earlier the learned Judges did not feel any hesitation in endorsing the conclusion of Krishna Rao, J. in W.P No. 1223 of 1966 that the opinion must be related to relevant data. This observation implies that there must be some data on which an opinion can be formed and that such data be a relevant data which can be related to the opinion. This understanding of the said judgment is further supported by the later observation of the learned Judges “…….. The subjective satisfaction of the Government is not open to attack in these proceedings except on well defined and specific grounds like mala fides which vitiate or nullify an administrative action.”
78. In Writ Appeal 236 of 1966 dated 3rd October, 1969, Obul Reddi and Madhava Reddy, JJ. held that while it cannot be disputed that it is for the Government to decide the question whether there was urgency or not for invoking section 17(4) of the Act for dispensing with the operation of section 5-A, it cannot be doubted that the High Court has power if it could be shown that the Government never applied its mind to the question of urgency or that the action is mala fide “to examine the basis on which the opinion as to urgency was formed.” In our opinion the last sentence just now quoted does not mean review on merits because earlier the learned Judges clearly rules it out from the purview of the High court.
79. In Writ Appeal No. 97 of 1967 dated 14th October, 1969 Ekbote and Ramachandra Raju, JJ. said that although the formation of opinion is left to the State Government, it is not totally free from judicial enquiry. If the opinion is formed in a case where there is no Page: 175material at all or the material has no bearing on urgency, then it cannot be said that the Government has applied its mind or has properly formed the opinion. We think that dicta of the judgment do not limit the scope of the judicial review only to the proof of the existence of the relevant material nor do we consider that it enlarges the scope of judicial review beyond what is stated above.
80. In W.P No. 3276 of 1966 and batch dated 30th December, 1969, Kumarayya, C.J and Sambasiva Rao, J. after exhaustively considering the decisions of the Supreme Court, Andhra Pradesh and Madras High Courts held that the subjective opinion formed can be challenged if it could be shown that the government never applied its mind to the matter or its action is mala fide. If the court finds that no opinion at all was formed or it was not based on any facts at all or was based on irrelevant or extraneous farts, the High Court can quash the opinion.
81. Since the last decision just now referred to considered the cases which also were cited before us we think we need not consider the same over again as we are in entire agreement about their appreciation and the conclusions drawn therefrom. We do not think that there is any divergence of opinion as is sought to be made out in the decisions of this court to which we have made a detailed reference. We are clear that the approach to the question under examination in Writ appeal No. 236 of 1966 and Writ Appeal No. 97 of 1967 manifestly recognise the distinction and consequently does not conflict with the ratio in Writ Appeal No. 109 of 1969. While appreciating them, it must be remembered that they were not exhaustively laying down the law as it now stands on the review ability of a subjectively worded formula. They were concerned with one or two aspects of the said question and naturally their consideration was confined to them. In no case, however we feel that it is laid down that the propriety and soundness of the opinion or sufficiency of relevant grounds can also be the basis for judicial review. In fact they rule out expressly or by necessary implication any proposition that like an appellate court the High Court can review the opinion based on subjective formula on its merits. They recognise the limitations placed on the judicial review. They categorically make distinction between an enquiry to find out whether there was any material at all to form the opinion or if it was there, was it relevant to the purpose Page: 176or could any reasonable person on such a material form the opinion or the opinion formed is perverse on the one hand and the enquiry into the propriety, soundness, sufficiency or weight of the material on the basis of which opinion is formed on the oilier. The distinction is real and substantial and there is very little scope to mix them or confuse them with each other. All the cases of this court thus have very much kept this distinction in view and we do not find any divergence of opinion between them. They all point to the same direction.
82. It is, however, conceived that if prima facie grounds are established for the proposition that the authority could not have been so satisfied or held the opinion, a Court will be entitled to hold the act or decision to be invalid unless the authority itself persuades the Court that it did in fact genuinely form the opinion which it claims to have held. See Regina v. Governor of Brixton Prison Ex Parte Soblem (1963) 2 QB 243 at 302, 307 and 308 where it is laid down:
“It is open to these courts to inquire whether the purpose of the Home Secretary was a lawful or unlawful purpose. Was there a misuse of the power or not? The courts can always go behind the face of the deportation order in order to see whether the powers entrusted by parliament have been exercised lawfully or not”
83. Thus a part from mala fides or lack of jurisdiction, the order based on a subjective formula can be attacked on any one or more of the grounds mentioned above. It is of course plain that some of the grounds mentioned above legitimately fall under the category of arbitrary exercise of power.
84. Our answer to the question therefore is that apart from the allegation of mala fides and lack of jurisdiction or competence, the notification under section 17(4) dispensing with the enquiry under section 5-A can in proper cases be attacked on any one or more of the grounds mentioned supra and the High Court in the exercise of its supervisory jurisdiction under Article 226 of the Constitution of India can entertain such grounds of attack. It was sought to be argued that under section 17(2) of the Act as mentioned by the Madras Act XXI of 1948, since in the opinion of the Collector it had become necessary to acquire the immediate possession of the land for the purpose of dwelling Louse Page: 177for the poor, the urgency can be said to have been decided by the Government. The learned Government Pleader however soon realised that the Collector had not taken any proceedings under sub-section (2). Neither any opinion of the Collector which he had formed could be produced before us, nor any previous sanction of the State Government could be brought to our notice. Once it is realised that no proceedings under sub-section (2) in the present case were in fact taken then reliance on sub-section (2) would be incorrect. Moreover, as we are considering the scope of sub-section (4) in order to find out whether sub-section (1) of, sub-section (2) applies to a given case, the Government before it formulates its opinion has to consider the necessary material in relation to the state of affairs mentioned in sub-section (1) or sub-section (2) as the case may be. This point need not be further laboured because the question referred to us and the facts out of which the question arises do not admittedly relate to sub-section (2) but relate only to sub-section (1). We do not therefore feel that such an argument is permissible at this stage.
85. This appeal pursuant to the judgment of the Full Bench, coming on for orders this day, upon perusing the grounds of appeal, the order of the High Court dated 3-1-1969 and made in W.P No. 1223 of 1966 and the order of reference to Full Bench dated 26-10-1970 and made herein and the order of the Full Bench dated 25-3-1971 and made herein and in the presence of Mr. G. Haridatha Reddy, Advocate for the appellants and of Mr. A. Anand Reddy, advocate for the respondents 1 to 5 and of the 3rd Government Pleader, on behalf of the respondents 6 and 7, the court made the following:
JUDGMENT
86. In the light of the full bench decision, it is conceded that the Writ Appeal will have to be dismissed. The Writ Appeal is accordingly dismissed, but without costs. Advocate's fee Rs. 100/- (One hundred only)